Sr. No. 45
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- SWP No. 1780/2003
Salochna Devi W/O Late Bhag
…..Appellant(s)/Petitioner(s)
Chand Ramola R/O Village Silari
P.O Gerri, District Tehri Gharwal,
Uttaranchal
Through: Mrs. Surinder Kour, Sr. Advocate with
Mr. Dalvinder Kumar, Advocate.
Vs
1. Union of India Through
.…. Respondent(s)
Home Secretary, Ministry of Home
Affairs, Govt. of India, New Delhi;
2. Director General of Police, C.R.F.F,
C.G.O Complex, Lodhi Road, New
Delhi;
3. Addl. Director General of Police,
C.R.P.F, North West Zone,
Chandigarh;
4. Inspector General of Police,
C.R.P.F, Bihar;
5. Dy., Inspector General of Police,
Muzzaferpur, Bihar;
6. Dy. Inspector General of Police,
C.R.P.F, Group Centre, Muzzaferpur,
Bihar;
7. Commandant, 116 Bn. C.R.P.F., C/O
56 A.P.O.
Through: Mr. Prem Sadhotra, CGSC.
Coram: JAVED IQBAL WANI, JUDGE
HON’BLE MR. JUSTICE
ORDER
29.02.2024
(ORAL)
1. In the instant petition filed under Article 226 of the Constitution of
India, it is revealed that the original petitioner, namely, Bhag Chand Ramola
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( ) while working as a Driver in
hereinafter for short, the ‘deceased petitioner’
the Central Reserve Police Force (for short, the CRPF) and posted at Group
Centre in 116 Bn., CRPF Bantalab Jammu, came to be dismissed from service
by the respondent No. 7 herein in terms of order No. P-VIII-7/2002/116-Est.-II
dated 30.11.2002, whereupon an appeal came to be preferred by the deceased
petitioner against the said order of dismissal before the appellate authority being
respondent No. 5 herein, which appeal came to be dismissed on 13.06.2003.
2. Before proceeding further in the matter, a brief background, which
resulted into initiation of the departmental inquiry against the petitioner,
becomes imperative hereunder:-
It came to be alleged by the respondents herein against the
petitioner that while posted as L/NK (Driver), Headquarter, 116 Bn. CRPF,
Jammu, the petitioner committed indiscipline and dereliction of duty having
obtained liquor from the local market and used the same and had a scuffle with
one-Mangal Singh (Constable/Driver of 49 Bn. CRPF) and during the scuffle,
caused an injury to the said Mangal Singh, besides receiving an injury to himself
as well at the hands of the said Mangal Singh, resulting into initiation of a
disciplinary enquiry against the deceased petitioner by the respondents,
whereupon completion of the same, conducted by the inquiry officer- Sh.
O.R.M. Munda (Assistant Commandant) appointed by the respondent No. 7
herein on 20.07.2002, the petitioner came to be dismissed from service by the
respondent No. 7 herein in terms of the impugned order dated 30.11.2002.
3. The deceased petitioner challenged the impugned order of
dismissal, as also the order of the appellate authority, whereby the appeal
preferred by him against the order of dismissal came to be rejected in the instant
3 SWP No. 1780/2003
petition, inter-alia, on the grounds that the impugned order of dismissal is
against facts and law and that the punishment of dismissal imposed upon the
petitioner under Section 11(1) of the Act of 1949 being major in nature, is
against the provisions of law having originated from the departmental inquiry
not conducted in accordance with the provisions of the Central Reserve Police
Force Rules, 1955 (for short, the Rules of 1955), inasmuch as, without holding a
preliminary inquiry in the matter and that the respondents before issuing the
impugned order of dismissal did not issue and serve the notice of proposed
punishment upon the deceased petitioner and that the respondents initiated and
conducted the disciplinary proceedings against the deceased petitioner in breach
of the Rules of 1955, as the said disciplinary inquiry in the matter could have
been ordered only by the Inspector General of Police, CRPF alone on account of
alleged misconduct not against the petitioner and that of the co-accused, namely,
Mangal Singh and that in the said disciplinary inquiry, the statement of said
Mangal Singh (co-accused) was never recorded by the inquiry officer and that
the said Mangal Singh was never proceeded against for the alleged mis-conduct
and instead, the said Mangal Singh came to be accorded promotions, whereas in
the case of the petitioner, a major penalty of dismissal came to be imposed by
the respondents herein, wherein besides directing forfeiture of his medals and
appreciation certificates earned by the petitioner, thus, subjected him to
discrimination.
4. Objections to the petition have been filed by the respondents herein,
wherein it is being stated that the deceased petitioner came to be enlisted in
CRPF on 27.05.1998 as a Constable/Driver and was posted in 116 Bn. CRPF in
the month of May, 1996 and that a joint departmental inquiry was ordered
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against the petitioner vide order dated 24.10.1999 in connection with drinking
liquor and quarrelling with his colleagues on petty matters, as a result whereof,
the deceased petitioner was reverted from the post of LNK/Driver to the post of
Constable/Driver for the period of two years from 21.03.2000 to 20.03.2002 and
came to be attached with Field Workshop, GC, CRPF, Jammu (J&K) w.e.f.
22.02.2002.
It is being further stated that during the said attachment period on
05.05.2002, the deceased petitioner purchased liquor from the market and
consumed it and thereafter, quarreled with one Constable/Driver, namely,
Mangal Singh of 49 Bn. while paying cards, in which both the Drivers sustained
injuries, whereafter, a preliminary inquiry was conducted in the matter and
thereafter, the deceased petitioner was placed under suspension w.e.f 26.06.2002
and a departmental inquiry thereafter was initiated against the deceased
petitioner on 06.07.2002, wherein charges came to be framed against the
deceased petitioner, which later on, came to be proved during the course of
inquiry and consequently, after completion of the said inquiry and taking into
consideration the report of the inquiry, the gravity of offence committed, the
deceased petitioner came to be dismissed from service vide order dated
30.11.2002, against which order of dismissal, the deceased petitioner preferred
an appeal before the appellate authority on 14.12.2002, which appeal came to be
rejected on 13.06.2003.
Heard learned counsel for the parties and perused the record.
5. Perusal of the record pertaining to the case in hand produced by the
learned counsel for the respondents reveals that a preliminary inquiry have had
been conducted by the official respondents against the deceased petitioner and
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co-accused-Mangal Singh qua the incident dated 05.05.2002, wherein both the
petitioner, as also the said Mangal Singh had got injured during a scuffle
between them. The preliminary inquiry record reveals that both the personnel
have had consumed liquor and had quarreled with each other during the course
of playing cards and in the said quarrel, the petitioner first received an injury at
the hands of the said Mangal Singh in his right eyebrow and thereafter, the said
Mangal Singh sustained injury at the hands of the petitioner on his head. It also
gets revealed from the said enquiry report that upon medical examination of
both the personnel, it came to be observed that both of them had consumed
liquor. The said preliminary established that both the personnel have had
indulged in gross indiscipline after consuming liquor and assaulted each other in
the barrack, having resulted into injuries to them and, thus, the said preliminary
inquiry upon its completion recommended holding of a departmental inquiry
against both the delinquent personnel.
6. Perusal of the aforesaid record further reveals that a departmental
inquiry was initiated against the deceased petitioner alone and charges thereof
came to be drawn and framed against the deceased petitioner on the basis of a
complaint filed by one-Sajjan Singh (HC/GD) dated 06.05.2002 regarding the
incident, alleging therein the said charges that the deceased petitioner committed
indiscipline, laxity and negligence on 05.05.2002 while consuming liquor
alongwith Constable/Driver-Mangal Singh and entered into a scuffle with him
and caused injury to him, besides receiving injury to his person.
Perusal of the record of the disciplinary inquiry would reveal that
the disciplinary authority appointed one-Sh. O.R.M. Munda (Assistant
Commandant) as an inquiry officer on 20.07.2002 and during the course of the
6 SWP No. 1780/2003
said inquiry, the inquiry officer examined the Havaldar-Sajjan Singh as a
witness, besides S.T.O. Chandrashekhar of Composite Hospital, Bantalab,
Jammu, as also Sh. Balihar Singh, Assistant Commandant, O.S.T.O, F.W.S,
Bantalab, Jammu and on the basis of the statements of the said witnesses, as also
the documents produced by the said witnesses being EXIBIT-I and EXIBIT-II,
concluded that the charges framed against the deceased petitioner are proved
and established.
A deeper and closer examination of the inquiry record in general
would reveal that the inquiry officer conducted the same in a mechanical manner
without strictly following the procedure prescribed by Rule 27 (C) of the Rules
of 1955, which Rule being relevant and germane herein, is extracted in extenso
and reproduced hereunder:-
“27(A)…….
(B)…….
(C) The procedure for conducting a departmental enquiry shall be
as follows:-
(1) The substance of the accusation shall be reduced to the
form of a written charge, which should be as precise as
possible. The charge shall be read out to the accused and a
copy of it given to him at least 48 hrs. before the
commencement of the enquiry.
(2) At the commencement of the enquiry the accused shall be
asked to enter a plea of “Guilty” or “Not Guilty” after
which evidence necessary to establish the charge shall be let
in. The evidence shall be material to the charge and may
either be oral and documentary; if oral;
(i) It shall be direct;
(ii) It shall be recorded by the Officer conducting the enquiry
himself in the presence of the accuse;
(iii) The accused shall be allowed to cross examine the
witnesses.
(3) When documents are relied upon in support of the charge,
they shall be put in evidence as exhibits and the accused
shall, before he is called upon to make his defence, be
allowed to inspect such exhibits.
7 SWP No. 1780/2003
(4) The accused shall then be examined and his statement
recorded by the officer conducting the enquiry. If the
accused has pleaded guilty and does not challenge the
evidence on record, the proceedings shall be closed for
orders. If he pleads “Not guilty”, he shall be required to
2024:JKLHC-JMU:180 14 SWP No. 188/2007 file a written
statement, and a list of such witnesses as he may wish to cit
in his defence within such period, which shall in any case
be not less than a fortnight, as the officer conducting
enquiry may deem reasonable in the circumstances of the
case. If he declines to file a written statement, he shall
again be examined by the officer conducting the enquiry on
the expiry of the period allowed.
(5) If the accused refuses to cite any witnesses or to produce
any evidence in his defence, the proceedings shall be closed
for orders. If he produces any evidence the officer
conducting the enquiry shall proceed to record the
evidence. If the officer conducting the enquiry considers
that the evidence of any witness or any document which the
accursed wants to produce in his defence is not material to
the issues involved in the case, he may refuse to call such
witness or to allow such document to be produced in
evidence, but in all such cases he must briefly record his
reasons for considering the evidence inadmissible. When all
relevant evidence has been brought on record, the
proceedings shall be closed for orders.
(6) If the Commandant has himself held the enquiry, he shall
record his findings and pass orders where has power to do
so. If the enquiry has been held by any officer other than
the Commandant, the officer conducting the enquiry shall
forward his report together with the proceedings, to the
Commandant, who shall record his findings and pass
orders, where he has power to do so.
”
7. It is significant to note here that the perusal of the statement of the
witness-Sajjan Singh (HC/GD) made by him before the inquiry officer in
disciplinary proceedings is in total contradiction and conflict with the statement
of the co-accused-Mangal Singh made by him during the course of preliminary
inquiry, wherein the said Mangal Singh had specifically stated that after pushing
the deceased petitioner during scuffle, he noticed injury on the right eyebrow of
the deceased petitioner, which was bleeding, whereafter, he went outside to
clean the utensils and while doing so, the deceased petitioner hit his head from
the backside with some hard object, whereafter I saw him fleeing from the place
8 SWP No. 1780/2003
and by that time, HC/GD-Sajjan Singh also arrived there and I narrated the
whole story to him and we tried to search for the deceased petitioner, but could
not locate him and the said Sajan Singh told me to go to Hospital, whereafter I
went to the Hospital and the doctor and the nurse present on duty attended me,
whereon the witness-Sajjan Singh (HC/GD) before the inquiry officer in the
disciplinary proceedings has given a totally different version and, therefore,
under the said circumstances, it was obligatory on the inquiry officer to have
examined the said Mangal Singh, as the Sajjan Singh (HC/GD) in his statement
before the inquiry officer have had deposed that he found on the date of incident
both the delinquent personnel fighting with each other, catching underwears of
each other, having torn them off, blood oozing out of them and that he got them
released from the scuffle and thereafter, sent both of them to the Hospital for
treatment, whereafter he submitted a report in writing regarding the incident to
the O.C.
8. Perusal of the record of the inquiry also tends to show that the
inquiry officer has in his report stated that it came to be established on the basis
of the statements of the witnesses and the documents on record that the
petitioner obtained wine from local market, used it, hurled abuses and
committed beatings in the line without making any mention about the role of the
Mangal Singh (co-accused of the petitioner) therein in the said beating.
9. Perusal of the impugned order also reveals that the respondent
No. 7 herein has observed that the accused (petitioner herein) has himself in the
preliminary investigation admitted to be a culprit and during the course of the
disciplinary inquiry, the petitioner did not putforth any solid proof for
establishing his innocence. The respondent No. 7 as well in the impugned order,
9 SWP No. 1780/2003
seemingly, has proceeded on the basis of the inquiry report, which, per se, is
found to be perverse hearing originated from an enquiry conducted in a
mechanical manner and in breach of Rule 27(C) of the Rules of 1955.
10. Besides the aforesaid infirmities being writ large in the disciplinary
proceedings conducted by the respondents herein against the deceased
petitioner, inasmuch as, in the impugned order as well, the respondents in their
reply affidavit have nowhere justified or offered a reasonable explanation as to
why the petitioner alone came to be subjected to the departmental inquiry and
not the co-accused-Mangal Singh despite the fact that the preliminary inquiry
conducted in the matter have had recommended, holding of the departmental
inquiry against both of them.
The respondents herein have not even denied the contention of the
deceased petitioner urged in the petition that the respondents herein instead of
proceeding against the said Mangal Singh chose to promote him to the next
higher post at one hand and, on other hand, dismissed the petitioner from service
for the alleged misconduct, which, per se, was not proved sufficiently during the
course of the disciplinary inquiry and that otherwise as well, the said
punishment of dismissal imposed have had been shockingly disproportionate to
the alleged act of misconduct.
11. Having regard to the aforesaid facts and circumstances, the only
inescapable conclusion that can be drawn in the matter is that, the respondents
have grossly faulted in the matter of holding the disciplinary inquiry against the
petitioner and proceeded to issue the impugned order of dismissal while
subjecting the deceased petitioner to hostile discrimination vis-à-vis
Constable/Driver-Mangal Singh and though under these circumstances, directing
10 SWP No. 1780/2003
of holding of a fresh inquiry in the matter would have been appropriate, yet
having regard to the fact that the petitioner has died during the pendency of the
petition, such a direction could not be passed.
12. For what has been observed, considered and analyzed hereinabove,
the instant petition deserves to be allowed. Accordingly, the same is allowed and
by issuance of a writ of certiorari, the impugned order of dismissal dated
30.11.2002 passed by the respondent No. 7 herein and the consequent order of
rejection of appeal dated 13.06.2003 passed by the respondent No. 5 herein are
quashed and by issuance of writ of mandamus, the respondents herein are
commanded to treat the deceased petitioner to have been in service and extend
all the service benefits, to which the deceased petitioner would have been
entitled thereto, minus back wages w.e.f. the date of dismissal uptill 10.04.2021,
i.e., the date of the death of the deceased petitioner and present petitioner being
the wife of the deceased petitioner shall be deemed to be entitled to the said
service benefits of the deceased petitioner.
13. Writ petition is, accordingly, disposed of.
(Javed Iqbal Wani)
Judge
Jammu
29.02.2024
Ram Krishan
Whether the order is speaking? Yes
Whether the order is reportable? Yes